Draft Bribery Bill 2009
Memoranda to Joint Committee scrutinising the Bill

On 25 March 2009, the UK Ministry of Justice published its long-awaited Draft Bribery Bill, the stated aim of which is "to reform the criminal law to provide a new, modern and comprehensive scheme of bribery offences that will enable courts and prosecutors to respond more effectively to bribery at home or abroad".

A Joint Committee comprising 12 members from each of the House of Commons and the House of Lords (the lower and upper Houses of Parliament respectively) was established to scrutinise the Bill and report by 21 July 2009.

The Corner House was requested by the Committee to submit evidence on the proposed new offence of bribing foreign public officials.

Its first written submission of 9 June 2009 (also available in PDF format) focuses on the investigation and prosecution of the proposed new discrete offence of bribery of foreign public officials (Clause 4). The Corner House believes that if this clause is to be effective in tackling foreign bribery, well-founded allegations of bribing a foreign public official must be investigated properly and, if the evidence so warrants, prosecuted.

To ensure that this happens, additional clauses are needed to make certain that those investigating and prosecuting the bribery of foreign public officials are not influenced by considerations of national economic interest or the potential effect upon relations with another state or the identity of the natural or legal persons involved. These clauses should reflect Article 5 of the OECD Anti-Bribery Convention.

Without such clauses, this Corner House submission contends that the Draft Bribery Bill is highly unlikely to be effective in tackling foreign bribery and will not make the law easier for prosecutors and the courts to apply. It may result in the law not being applied equally to all, and may (ironically) even encourage cross-border bribery.

The Corner House also submitted a Legal Opinion by barristers Dinah Rose QC, Ben Jaffey and Naina Patel of Blackstone Chambers, which summarises the status of Article 5 of the OECD Anti-Bribery Convention in the UK following the House of Lords ruling in July 2008 in the judicial review brought by Campaign Against Arms Trade and The Corner House: Article 5 cannot be enforced in the UK. The Legal Opinion concluded that "by failing properly to incorporate and enforce its obligations under Article 5 of the Convention, the UK is and remains in breach of its international law obligations under the Convention".

The Corner House gave oral evidence to the Committee on 11 June 2009, together with Transparency International.

Following the oral session, The Corner House was requested to submit additional written evidence (also available in PDF format) addressing:

• issues arising from the Bill's proposed reform of the Attorney General's powers of consent and direction in bribery cases, including parliamentary accountability;
• whether "national security" concerns mean that serious cases of bribery will not be prosecuted;
• how the Executive can protect the country from a national security threat without publicly revealing information that may undermine national security;
• suggested revisions to the proposed offence of bribing a foreign public official; and
• whether another new proposed criminal offence, "Failure of commercial organisations to prevent bribery" should be turned into a civil/regulatory regime imposing fines on companies rather than a criminal offence.

The Committee published its final report on 28 July 2009, declaring that it "strongly support[s]" the draft Bribery Bill. The report's opening paragraph states:

"It represents an important, indeed overdue, step in reforming the United Kingdom's bribery laws, which have been a source of criticism at home and abroad for more than thirty years."

Although the Committee did not take up The Corner House's recommendation of including Article 5 provisions within the Bill, it did stress that:

"Article 5 of the Organisation for Economic Co-operation and Development's Convention must, at a minimum, be enshrined in guidelines applying to all prosecutors. Confidence in the criminal justice system will be undermined unless this important principle is both protected and respected. We recommend that the Attorney General take the earliest opportunity to ensure that this happens." (para 183)

The Committee closed its summary by stressing that "the Government must focus on the need for rigorous enforcement [of the Bribery Bill], including the resources this will require. We believe it is an investment that is well worth making."

In addition, the Committee recommended stiffening another new offence directed at companies that fail to prevent bribery by persons acting on their behalf; it proposed that a commercial organisation should be made "strictly liable" for such bribery. The Serious Fraud Office has noted that "individuals do the bribing, corporations benefit."

The Committee urged the Government to "find time promptly" to introduce a Bribery Bill reflecting the Committee's suggested changes.

Postcript: The Bill was passed on 8 April 2010 to become the Bribery Act 2010.